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United States v. Lussier

United States Court of Appeals, Eighth Circuit

January 6, 2017

United States of America Plaintiff- Appellee
v.
Darrell Alan Lussier Defendant-Appellant

          Submitted: October 21, 2016

         Appeal from United States District Court for the District of Minnesota - St. Paul

          Before RILEY, Chief Judge, WOLLMAN and BENTON, Circuit Judges.

          WOLLMAN, Circuit Judge.

         Following a jury trial, Darrell Alan Lussier was convicted of three counts of kidnapping, in violation of 18 U.S.C. §§ 1151, 1153(a), and 1201(a)(2), and three counts of assault resulting in serious bodily injury, in violation of 18 U.S.C. §§ 113(a)(6), 1151, and 1153(a). The district court[1] sentenced Lussier to 360 months' imprisonment. Lussier appeals, arguing that the district court erroneously instructed the jury regarding assault resulting in serious bodily injury, that the court erred by conditionally admitting a prior assault conviction as impeachment evidence, and that the evidence was insufficient to convict him of kidnapping. We affirm.

         I.

         Because Lussier challenges the sufficiency of the evidence, "we will examine the evidence in the light most favorable to the government, giving the government the benefit of all reasonable inferences." United States v. Bordeaux, 84 F.3d 1544, 1547 (8th Cir. 1996). In February 2015, Gregory Lee Maxwell resided in a duplex house in the Back of Town area of the Red Lake Indian Reservation. Maxwell was prohibited from having drugs in the house. Lussier and his then-girlfriend Cristy Sumner resided with Maxwell for approximately one month. Maxwell believed that he was on good terms with Lussier and Sumner, who had "pretty much left on their own, " but according to Maxwell, Lussier and Sumner had brought drugs into the house, despite knowing that drugs were not allowed on the premises.

         On or about February 7, 2015, David Roy and Maxwell were drinking alcohol together at Maxwell's house. When Maxwell left to buy more alcohol, he instructed Roy not to let Lussier and Sumner into the house. When Maxwell returned home a few hours later, David Roy, his sister Nancy Roy, Lussier, and Sumner were present at his house. Lussier proceeded to beat Maxwell, David Roy, and Nancy Roy. According to Maxwell, Lussier hit him, jumped on his stomach and side, wrapped a bootlace around his throat, and dragged him by the bootlace, choking him. When

         Maxwell tried to leave, Sumner blocked the door, and Lussier told him: "Tonight is the night. Tonight is the night. You gonna die tonight. You got one hour to live." David Roy and Nancy Roy were also badly beaten by Lussier. Lussier and Sumner threw Maxwell, David Roy, and Nancy Roy through a trap door into the crawl space underneath the house. They then shut the trap door to the crawl space, which was cold and poorly lit. Maxwell and Nancy Roy attempted to find the trap door and push it open but were unable to do so. The three remained in the crawl space until Maxwell's nephew, Lawrence Kingbird, discovered them on the morning of February 9, 2015.

         Maxwell, David Roy, and Nancy Roy all eventually received medical treatment. Maxwell suffered a hemopneumothorax, blood and air in the chest cavity that placed pressure on the heart and lungs and required the placement of a chest tube; several rib fractures, which likely caused the hemopneumothorax; spinous process fractures; a dissection of his carotid artery, which caused him to suffer a stroke; a deep cut on his chin that required sutures; and a traumatic brain injury. Maxwell was hospitalized for approximately ten days and spent ten more days in rehabilitation. Nancy Roy suffered a subdural hematoma and multiple facial bone fractures, which required surgery. She was hospitalized for approximately ten days. David Roy suffered hemorrhaging in his brain and facial fractures. He spent more than one month in the hospital and approximately one month in a psychiatric facility.

         II.

         A.

         Lussier first argues that the district court erred in instructing the jury on assault resulting in serious bodily injury. Because Lussier did not object to these instructions, we review for plain error. United States v. Davis, 237 F.3d 942, 944 (8th Cir. 2001). "[A] conviction will be affirmed 'if the instructions, taken as a whole, fairly and adequately convey the law applicable to the case.'" United States v. Whitefeather, 275 F.3d 741, 743 (8th Cir. 2002) (quoting United States v. McDougal, 137 F.3d 547, 558 (8th Cir. 1998)).

         Lussier contends that the jury instruction did not require the jury to find that Lussier committed an assault that resulted in serious bodily injury, as the statute requires. See 18 U.S.C. § 113(a)(6). The district court instructed the jury that the offense has two elements: that the defendant committed an assault, and that the person assaulted suffered serious bodily injury. The court defined assault as "an intentional and voluntary attempt or threat to do injury to another person, when coupled with the present ability to do so that is sufficient to put the other person in fear of immediate bodily injury." Lussier argues that because the instruction defined assault only as a threat or attempt to injure another, it did not require that the assault actually caused the serious bodily injury. He acknowledges that we have previously upheld convictions for assault under § 113 when the offense conduct involved a harmful or offensive touching. See Whitefeather, 275 F.3d at 742-43; Davis, 237 F.3d at 944-45. But he argues that ...


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